Visa Cancellation Under s116 — The Notice, Condition Breaches and How to Respond

MARN 1576536

The grounds for cancellation

Section 116 of the Migration Act 1958 lets the Minister cancel a visa where, among other grounds, the circumstances that permitted the grant no longer exist, the holder has not complied with a visa condition, the holder’s presence may be a risk to the health, safety or good order of the community, the visa should not have been granted because of a bogus document or false information, or a prescribed ground exists. Section 109 provides for cancellation where incorrect information was given in the application or in a passenger card. Separate powers deal with character (section 501) and with student visas on the education provider’s report. For most s116 grounds the power is discretionary: even where the ground exists, the Department must consider whether to cancel.

• Condition 8202: students who are not enrolled, not attending or not making satisfactory progress.
• Condition 8501: failing to maintain health insurance.
• Condition 8503 (no further stay) and 8534: applying for a visa the condition prohibits.
• Condition 8105 / 8104: students or dependants working more hours than permitted.
• Condition 8107 / 8607: sponsored workers who stop working for the sponsor or in the nominated occupation and do not resolve it within the period allowed.
• Circumstances no longer exist: a relationship ends while a provisional partner visa is held; the activity a 408 was granted for stops.
• Incorrect information: an answer in the application or on the incoming passenger card that was wrong, whether or not deliberately.

The notice of intention to consider cancellation

Before cancelling under s116 while the holder is in Australia, the Department issues a notice of intention to consider cancellation setting out the ground, the information it relies on, and a period for response. The period is set in the notice and is short, often measured in days for onshore holders. The notice will usually invite the holder to comment on whether the ground exists and on the discretionary factors: the purpose of the stay, the extent of compliance, the degree of hardship, the circumstances of the breach, the person’s past and present behaviour, and the consequences of cancellation including for family in Australia. A holder who is outside Australia may be cancelled without notice in some circumstances and told afterwards.

Student visas: condition 8202 and enrolment

The most common cancellation notices go to students. An education provider reports unsatisfactory attendance or progress, or the student stops being enrolled, and a notice follows. The response has to deal with both the ground (was the student in fact enrolled or attending; was the provider’s report accurate) and the discretion (illness, family circumstances, provider failures, steps taken to re-enrol). A student who has already enrolled with another provider by the time of the response is in a very different position from one who has not.

Responding to the notice

• Confirm the ground relied on and whether the facts in the notice are correct. Where they are wrong, say so with evidence.
• Where the breach occurred, explain it candidly with evidence of the circumstances and of what has been done since.
• Address each discretionary consideration the notice lists, with evidence: compliance history, ties, hardship, family, the purpose of the stay and how it continues.
• Lodge within the period, through the channel the notice specifies, and keep proof of lodgement.
• Where another visa is realistic, consider lodging it before the cancellation decision; a visa application made while the current visa is in effect avoids the s48 bar that applies after cancellation.

If the visa is cancelled

A person whose visa is cancelled in Australia becomes unlawful unless a bridging visa is granted, and is barred by section 48 from applying for most visas while in Australia. An application for Tribunal review of an onshore s116 cancellation must be lodged within seven working days. Departure after cancellation can attract an exclusion period of three years for most temporary visas under Public Interest Criterion 4013 (and 4014 where the person became unlawful), subject to compelling circumstances. The cancellation is disclosed in every future application. These consequences are why the response to the notice is treated as the main event: the cancellation decision is far harder to undo than it is to prevent.

Send WIDEN a confidential enquiry

Tell us briefly what you received and the date on the letter. If the deadline is close, say so and we will prioritise it. These matters are handled in the extended consultation; the enquiry form is for sending the documents ahead of it, not for free advice.

General information only, current at October 2026; not advice on your own case. Outcomes depend on the Department’s assessment of each application; no registered migration agent can guarantee a result (Code of Conduct, Migration Agents Regulations). Keshab Chapagain, MARN 1576536.